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Strict liability for the escape of fire after Stannard v Gore

In Stannard (t/a Wyvern Tyres) v Gore, the Court of Appeal held that there is no special modification of the rule under Rylands v Fletcher for cases involving the escape of fire. It is an essential requirement of this rule that the “dangerous thing” brought onto the defendant’s land should escape. In so-called fire cases, where fire escapes but the “dangerous thing” does not, the defendant will not be liable under Rylands v Fletcher, notwithstanding that the “dangerous thing” may have played a role in the start or spread of the fire.

Wyvern Tyres

The defendant, Mr Stannard, operated his tyre fitting and supply business, known as Wyvern Tyres, from a trading estate in Hereford. The claimant occupied an adjoining unit. On 4 February 2008, an electrical fire started at the defendant’s premises, which developed and ignited some 3,000 tyres. As a result, the fire spread rapidly, destroying the defendant’s premises, the claimant’s unit and other adjoining units. The claimant brought a claim against the defendant in negligence and in strict liability, relying on Rylands v Fletcher.

The decision at first instance

At first instance, the claim in negligence was dismissed but the defendant was held liable to the claimant under the rule in Rylands v Fletcher.

It was held that the tyres had a special fire risk quality, although they were not in themselves flammable, and would not ignite unless there was a sufficient flame or heat source. Once alight, they burn rapidly and intensively, such that they are difficult to put out. Further, the tyres were stored in a haphazard manner and in a large quantity for the size of the premises. These factors brought the case within the rule in Rylands v Fletcher. The storage of tyres presented an exceptionally high risk of danger and was a non-natural use of land.

On appeal

The single issue on appeal was whether the rule in Rylands v Fletcher had been correctly identified and applied. A unanimous Court of Appeal (Ward, Etherton and Lewison LJJ) held that it had not. There were, however, significant differences of approach between the three Lord Justices.

The majority reasoning – Ward LJ and Etherton LJ

The majority view was that in light of the comprehensive review of the Rylands v Fletcher principle by the House of Lords in Transco v Stockport MBC, there was no scope for the principle to be applied to the facts in Wyvern.

It is an essential requirement of the rule in Rylands v Fletcher that the defendant has brought some exceptionally dangerous “thing” onto its land and that “thing” must escape causing damage. In Wyvern, the “thing” (the tyres) did not escape. The fire fuelled by the tyres had escaped, but the defendant had not brought the fire onto his land. In these circumstances a claim based on Rylands v Fletcher must fail. In any event, the tyres were not exceptionally dangerous or mischievous.

Further, the defendant’s commercial activity as a motor tyre supplier was a perfectly ordinary and reasonable activity to be carried on in a light industrial estate, and was not therefore a non-natural use of the land for the purposes of the rule in Rylands v Fletcher.

The minority view – Lewison LJ

Lewison LJ agreed that the appeal should be allowed, but would have gone further in limiting the scope of strict liability for the escape of fire. Following a comprehensive review of over 600 years of authority, Lewison LJ concluded that section 86 of the Fires Prevention (Metropolis) Act 1774 (which was pleaded) provided a defence to claims based on the rule in Rylands v Fletcher, at least where the fire was not deliberately started.

Etherton LJ expressly disagreed, noting that the application of section 86 in relation to the rule in Rylands v Fletcher was decided by the Court of Appeal in Musgrove v Pandelis [1919] 2 KB 43, which decision was binding on the court. Lewison LJ considered that Musgrove was unsound authority and should no longer be followed. Ward LJ expressed no concluded view on this aspect of the case, but hinted that, if pressed, he might conclude that those parts of the judgment in Musgrove relating to Rylands v Fletcher were obiter.

Musgrove v Pandelis

Leaving to one side the question of section 86 of the 1774 Act, Musgrove was subject to criticism on another point: as a decision on its facts, it involved modifying the rule in Rylands v Fletcher.

In Musgrove, the defendant kept a car in his garage. A fire started in the carburettor, enveloped the car and spread to the claimant’s rooms above the garage. The defendant was held liable for the negligence of his servant, who could have prevented the development and spread of the fire. Therefore, the decision was capable of being understood on the grounds of negligence alone. However, the Court of Appeal also held that the defendant was liable under the rule in Rylands v Fletcher because the motor car was a “dangerous thing”.

In Wyvern it was noted that Musgrove was a fact-sensitive case and would “most definitely not be decided the same way today”. A hundred years later, a motor car is no longer such a novel or dangerous thing.

This aspect of Musgrove is readily understood, but the more challenging aspect is in the analysis of the strict liability rule that was applied.

A special rule for fire: cases before Wyvern

Musgrove had been followed and developed in a line of authority starting with Mason v Levy Auto Parts of England Ltd [1967] 2 QB 530. Here a severe fire of unknown cause started on the defendants’ land and, fuelled by the large quantities of combustible materials kept there, spread to the claimant’s adjoining land.

The court had to grapple with the same issue that arose in the appeal in Wyvern: the rule in Rylands v Fletcher requires the defendant to have brought onto its land something likely to do mischief if it escapes and also requires the thing to escape and cause damage. The criterion of escape was evidently missing from the facts of both Mason and Musgrove.

As Ward LJ noted in Wyvern, the judge in Mason was perplexed by Musgrove: the car and petrol had not escaped from the land. However, Musgrove had not been overruled and the judge felt he had to follow it, holding the defendant strictly liable for the escape of fire. The judge rationalised his decision by modifying Rylands v Fletcher to support it: the defendant had to have brought things onto its land that were likely to catch fire and kept them in such conditions that if they did ignite, the fire would be likely to spread to the claimant’s land.

More recently, the Mason modification was adopted and refined by HHJ Coulson QC (as he then was) in LMS International Ltd v Styrene Packaging. HHJ Coulson QC’s summary was cited with approval by Akenhead J in Harooni v Rustins Ltd.

However, in light of the majority’s view in Wyvern, this special rule for strict liability for the escape of fire can no longer be regarded as good law. In the words of Etherton LJ:

“The speeches in Transco… leave no scope for the formulations in the previous fire cases, which required, as a condition of liability, that there was some inherent danger (irrespective of escape) in what the defendant has brought onto his or her land, whether by virtue of flammability (eg. Mason) or otherwise (eg. [Jones v Festiniog Railway Company (1868) LR 3 QB 733] and Musgrove).”

What is left of strict liability for the escape of fire?

In Wyvern, Ward LJ concluded that in an appropriate case damage caused by fire emanating from an adjoining property can fall within Rylands v Fletcher, but the appropriate case is likely to be very rare, because:

“(1) It is the “thing” which had been brought onto the land which must escape, not the fire which was started or increased by the “thing”.
(2) While fire may be a dangerous thing, the occasions when fire as such is brought onto the land may be limited to cases where the fire has been deliberately or negligently started by the occupier or one for whom he is responsible. Is this not a relic of the ignis suus rule?
(3) In any event starting a fire on one’s land may well be an ordinary use of the land.”

Wyvern will have significant ramifications for fire claims in general. In particular, it is clear from the above passage that it will now be very difficult for claimants to succeed in such cases without proof of negligence.

The three detailed judgments touch upon a number of other interesting and challenging issues that are beyond the scope of this article, for instance:

  • The position in respect of cases involving explosions (where the requirement of escape may also be missing).
  • Whether there is a separate cause of action in nuisance for escape of fire.

Consideration of these points will have to await another occasion.

Jonathan Waite QC and Michele De Gregorio, instructed by DAC Beachcroft, appeared for the successful appellant.

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